<nettime> Harold Feld: Tom Wheeler and the Defining Question of Network Neutrality

[nettime's_optimo-pessimist <nettime@kein.org>]

< http://www.wetmachine.com/tales-of-the-sausage-factory/tom-wheeler-and-the-defining-question-of-network-neutrality/ > 

Tom Wheeler and the Defining Question of Network Neutrality

   By Harold | May 1, 2014

   Federal Communications Commission (FCC) Chairman Tom Wheeler caused
   quite a stir last week when he circulated a new Notice of Proposed
   Rulemaking on network neutrality. As reported by the press, the
   proposed rule moves away from generally prohibiting wireline broadband
   providers from offering "paid prioritization" (aka Internet "fast
   lanes") to explicitly permitting wireline providers to offer paid
   prioritization subject to conditions designed to guard against
   anti-competitive and anti-consumer conduct.


   Needless to say, this pleased just about nobody. Supporters of
   network neutrality regard paid prioritization as intrinsically
   anti-competitive and anti-consumer by making the Internet experience
   dependent on the `commercially reasonable' deals of the network
   provider rather than the choice of the subscriber. By contrast,
   opponents of net neutrality oppose any limitations on what ISPs can do
   as "regulating the internet." To employ a crude analogy, network
   neutrality supporters see Wheeler's proposal as roughly the equivalent
   of teaching the rhythm method in sex ed, while opponents are outraged
   that Wheeler would teach anything other than pure abstinence.


   What Wheeler has done here is to frame the defining question of network
   neutrality. The upcoming Notice of Proposed Rulemaking (NPRM) gives
   those of us who believe that paid prioritization is the opposite of net
   neutrality and an Open Internet the opportunity to make the case. Even
   more importantly, Wheeler has now confirmed that the May 15 NPRM
   will ask whether the FCC needs to reclassify broadband as a Title II
   "telecommunications service" so that the FCC will have sufficient
   authority to create real and effective network neutrality rules. (You
   can see Wheeler's blog post setting out his proposed approach here,
   and his aggressive speech in the veritable heart of enemy territory --
   the 2104 Cable Show in Los Angeles) here.)


   As I Tweeted in a somewhat more goofy fashion when the first
   stories on this began to break, this not the time to give up in
   despair. This is the time to stand up and make our case and fight like
   our future depends on it -- because it does. As someone living in the
   DC Telecom Policy Sausage Factory, I can tell you that the strength and
   depth of the public outcry at the first reports that the FCC would
   allow Internet fast lanes shocked official Washington. If we want real
   network neutrality rules, which (as I wrote back in January after
   the most recent court ruling) first requires the FCC to reclassify
   broadband access  as a Title II telecommunications service, we must
   make our case and make our voices heard!


   And we need to make our voice heard, not only to the FCC but also to
   Congress and the White House. Official Washington, which always fights
   the last battle, has a severe mental block against Title II. We need to
   make it clear to members of Congress in both parties, and to the White
   House, that because the D.C. Circuit has made it clear that the only
   way to have network neutrality is to classify broadband access as a
   Title II telecommunications service that is what they must do.


   Wheeler is constrained by politics, "the art of the possible." As we
   have already seen, Wheeler has gotten heat from Republicans and
   opponents of network neutrality for refusing to close the old docket on
   reclassification from 2010. Now that Wheeler has said the FCC will
   actively consider Title II if it cannot provide adequate protection to
   consumers and competition under the current Title I Information
   service, we can be sure that those who launched  "shock and awe"
   campaign against Genachowski's "Third Way" reclassification proposal in
   2010 will do the same here even before May 15.


   Advocacy is about making the impossible possible. We must show not
   merely the 3 Democrats on the FCC, but the rest of the political class
   in Washington, that Title II reclassification is not a "nuclear option"
   or "third rail" but a necessary and well supported prerequisite to a
   healthy Internet policy. Start by writing the FCC at the email drop
   they have set up specifically to take comment from the public on the
   net neutrality proposal before the May 15 vote: openinternet@fcc.gov
   (read this good piece from the Consumerist first if you are looking
   for more background and style points).


   To conclude, we have not "lost" network neutrality nor has the FCC
   gutted it -- yet. Rather, we now have the opportunity to correct the
   mistake the FCC made four years ago when it failed to classify
   broadband as a Title II service and adopt an absolute ban on `paid
   prioritization' and other unjust and unreasonable practices. True, the
   current proposal reaches the wrong tentative conclusion. But it frames
   the right questions and gives us our chance if we step up and make our
   case.


   Those fighting for net neutrality may remember a similar dark
   moment back in 2006, when the House Commerce Committee passed out of
   committee a bill that would have killed net neutrality. As I wrote
   then, the initial spanking pro-net neutrality forces received back then
   helped frame the question and the fight for all to see, paving the way
   for our future victory.  Let me conclude here with what I wrote then,
   and have written numerous times since:


   "There's a lesson here. YOU CAN'T OUTSOURCE CITIZENSHIP. You can't let
   "the tech companies" or even "the consumer advocates" or anyone speak
   for you. Citizenship carries responsibilities that go beyond the ritual
   of voting every two years. But when citizens wake up and speak up, and
   speak to each other, they find -- to their surprise -- they are strong.
   They find they have power. And they find that being a citizen may take
   hard work, but it is so, so, SO much better and more satisfying than
   being a couch potato. As the great Jewish sage Hillel said: `If I am
   not for myself, who will be for me? If I am only for myself, who am I?
   If not me then who? If not now, when?'

   "When Ben Franklin left the Constitutional Convention someone shouted
   to him from the crowd "Mr. Franklin, what have you given us?" He
   answered "A republic -- IF YOU CAN KEEP IT." The Sausage Factory of
   democracy is a messy business, but it's worth it. We can either let
   other folks make the sausage and eat whatever shit they put in, or we
   can wade in and make sure it comes out alright. We lost today's battle.
   But we are turning the tide in the war. And if we keep growing and
   going like we have in the last week, we will win."

   Or, to borrow a phrase from one of my favorite movies: "Welcome
   back to the fight. This time our side will win."


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